Citation Nr: 0502014
Decision Date: 01/27/05 Archive Date: 02/07/05
DOCKET NO. 00-02 326 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Cleveland,
Ohio
THE ISSUES
1. Entitlement to service connection for a right foot and
heel disorder.
2. Entitlement to service connection for atherosclerosis, to
include as due to exposure to ionizing radiation.
3. Entitlement to service connection for a skin disorder, to
include as due to exposure to ionizing radiation.
4. Entitlement to service connection for lipomas and tumors,
to include as due to exposure to ionizing radiation.
5. Entitlement to service connection for an anal disorder,
to include as due to exposure to ionizing radiation.
6. Entitlement to service connection for a stomach disorder,
to include as due to exposure to ionizing radiation.
7. Entitlement to a total disability evaluation based upon
individual unemployability due to service-connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from November 1964 to
November 1968 and from February to August in 1969.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Pittsburgh, Pennsylvania in September 1999, April 2002, and
May 2004. The veteran's appeal also initially included the
issues of entitlement to service connection for peripheral
neuropathy, kidney cancer, degenerative joint disease, and a
lowered immune system with accelerated aging and genetic
defects; and entitlement to a temporary total evaluation
under 38 C.F.R. § 4.30 (2003). However, he withdrew these
issues from appellate status during his September 2004 VA
Video Conference hearing.
The Board remanded this case back to the RO in July 2001, and
the veteran's appeal at that time included a claim for
service connection for a right ankle disorder. This claim
was granted in a December 2003 rating decision, however.
During his September 2004 VA Video Conference hearing, the
veteran submitted a recent report of a VA x-ray of the right
ankle. Service connection is presently in effect for this
disorder, and the Board interprets this submission as an
informal claim for an increased rating. Accordingly, this
matter is referred back to the RO for appropriate action.
The issue of entitlement to TDIU is addressed in the REMAND
portion of the decision below and is REMANDED to the RO via
the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. All relevant evidence necessary to render a decision on
the veteran's claims has been obtained by the RO, and the RO
has notified him of the type of evidence needed to
substantiate his claims.
2. The veteran does not have a current right foot and heel
disorder that is etiologically related to service.
3. The veteran does not have a current cardiovascular
disorder that is etiologically related to service; moreover,
this disorder has not been shown to be causally related to
alleged exposure to ionizing radiation during service.
4. The veteran does not have a current skin disorder that is
etiologically related to service; moreover, this disorder has
not been shown to be causally related to alleged exposure to
ionizing radiation during service.
5. The veteran's claimed lipomas and tumors have not been
shown to be etiologically related to service; moreover, this
disorder has not been shown to be causally related to alleged
exposure to ionizing radiation during service.
6. The veteran's claimed anal disorder has not been shown to
be etiologically related to service; moreover, this disorder
has not been shown to be causally related to alleged exposure
to ionizing radiation during service.
7. The veteran does not have a current stomach disorder that
is etiologically related to service; moreover, this disorder
has not been shown to be causally related to alleged exposure
to ionizing radiation during service.
CONCLUSIONS OF LAW
1. A right foot and heel disorder was not incurred in or
aggravated by service. 38 U.S.C.A. §§ 1110, 1112, 1113,
5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303,
3.307, 3.309 (2003).
2. Atherosclerosis was not incurred in or aggravated by
service or as due to alleged exposure to ionizing radiation
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311
(2003).
3. A skin disorder was not incurred in or aggravated by
service or as due to alleged exposure to ionizing radiation
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311
(2003).
4. Lipomas and tumors were not incurred in or aggravated by
service or as due to alleged exposure to ionizing radiation
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311
(2003).
5. An anal disorder was not incurred in or aggravated by
service or as due to alleged exposure to ionizing radiation
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311
(2003).
6. A stomach disorder was not incurred in or aggravated by
service or as due to alleged exposure to ionizing radiation
therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 5103, 5103A, 5107
(West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.311
(2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) was
enacted. The VCAA redefines VA's obligations with respect to
its duty to assist the claimant with the development of facts
pertinent to a claim for VA benefits and includes an enhanced
duty to notify the claimant as to the information and
evidence necessary to substantiate a claim. This change in
the law is applicable to all claims filed on or after the
date of enactment of the VCAA or filed before the date of
enactment and not yet final as of that date. 38 U.S.C.A. §§
5100, 5102, 5103, 5103A, 5106, 5107, 5126.
The final rule implementing the VCAA was published on August
29, 2001. 66 Fed. Reg. 45,620-45,632 (Aug. 29, 2001)
(codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). These regulations, likewise, apply to any
claim for benefits received by VA on or after November 9,
2000, as well as to any claim filed before that date but not
decided by VA as of that date, with the exception of the
amendments to 38 C.F.R. § 3.156(a) (relating to the
definition of new and material evidence) and to the second
sentence of § 3.159(c) and § 3.159(c)(4)(iii) (pertaining to
VA assistance in the case of claims to reopen previously
denied final claims), which apply to any application to
reopen a finally decided claim received on or after August
29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).
In this case, the Board finds that all relevant facts have
been properly developed in regard to the veteran's claims,
and no further assistance is required in order to comply with
VA's statutory duty to assist him with the development of
facts pertinent to his claims. See 38 U.S.C.A. § 5103A; 38
C.F.R. § 3.159. Specifically, the RO has obtained records
corresponding to medical treatment reported by the veteran
and has afforded him a VA examination addressing his claimed
right foot and heel disorder. For reasons described in
further detail below, the Board has determined that an
examination addressing the veteran's other claimed disorders
is not "necessary" under 38 C.F.R. § 5103A(d).
The Board is also satisfied that VA's duty to notify the
veteran of the evidence necessary to substantiate his claims
has been met. The RO described such evidence in a September
2001 letter. By this letter, the RO has also notified the
veteran of exactly which portion of that evidence (if any)
was to be provided by him and which portion VA would attempt
to obtain on his behalf. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The veteran was further notified that he
should submit any additional evidence that he had in support
of his claims. See 38 C.F.R. § 3.159(b)(1).
The Board also notes that, in Pelegrini v. Principi, 18 Vet.
App. 112 (2004) (Pelegrini II, which replaced the opinion in
Pelegrini v. Principi, 17 Vet. App. 412 (2004)), the United
States Court of Appeals for Veterans Claims (Court) held that
a VCAA notice must be provided to a claimant before the
"initial unfavorable [agency of original jurisdiction (AOJ)]
decision on a service-connection claim." In Pelegrini II,
the Court also made it clear that where notice was not
mandated at the time of the initial RO decision, the RO did
not err in not providing such notice complying with
38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) because an
initial RO decision had already occurred. See also
VAOPGCPREC 7-2004 (July 16, 2004).
Here, the first AOJ adjudication of the veteran's claim for
service connection for a right foot and heel disorder
predated the enactment of the VCAA. The Board is,
nevertheless, satisfied that the September 2001 VCAA letter
fulfilled all VCAA requirements. The remaining claims were
first adjudicated after the issuance of the September 2001
VCAA letter. As such, the Board finds that no prejudice to
the veteran will result from an adjudication of his claims in
this Board decision, and remanding this case back to the RO
for further VCAA development would result only in additional
delay with no benefit to the veteran. See Bernard v. Brown,
4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6
Vet. App. 426, 430 (1994) (remands which would only result in
unnecessarily imposing additional burdens on the VA with no
benefit flowing to the veteran are to be avoided).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of
chronic disease in service, there is required a combination
of manifestations sufficient to identify the disease entity
and sufficient observation to establish chronicity at the
time. If chronicity in service is not established, a showing
of continuity of symptoms after discharge is required to
support the claim. 38 C.F.R. § 3.303(b). Service connection
may also be granted for any disease diagnosed after discharge
when all of the evidence establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d). Also, certain
chronic diseases, including cardiovascular diseases,
malignant tumors, and peptic ulcers, may be presumed to have
been incurred during service if manifested to a compensable
degree within one year of separation from active military
service. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307,
3.309.
The veteran has alleged that his disorders, other than his
right foot and heel disorder, are etiologically related to
exposure to ionizing radiation during service. However, the
veteran's post-service medical records do not show any
disorders that are specifically included among the list of
"radiogenic diseases" found in 38 C.F.R. § 3.311(b)(2)(i),
which consists largely of cancers. Also, the veteran has
presented no competent scientific or medical evidence
suggesting that his claimed disorders are "radiogenic
diseases," as would warrant further consideration under
38 C.F.R. § 3.311(b)(4). Moreover, the absence of competent
evidence of radiogenic diseases renders unnecessary any
further development to corroborate the veteran's claimed
exposure to ionizing radiation; even if fruitful, such
development would not support the veteran's claims on this
basis because no disorders listed in 38 C.F.R.
§ 3.311(b)(2)(i) have been shown. See Bernard v. Brown,
supra; see also Sabonis v. Brown, 6 Vet. App. at 430.
Accordingly, the Board finds that no further development is
needed regarding radiation exposure and that, as 38 C.F.R.
§ 3.311 is not applicable, the veteran's claims will only be
further considered on a direct service connection basis. See
Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
During service, in May 1969, the veteran was treated for an
injured right heel. However, his August 1969 separation
examination was negative for right heel or foot symptoms. An
August 1994 VA treatment record indicates that the veteran
was wearing bilateral foot orthotics. A November 1998
statement from Robert D. Multari, D.O., who reviewed the
veteran's service medical records, reflects that he had a
right ankle disorder (now separately service-connected) that
was "subsequent to injury to his right foot and heel in the
course of active duty in 1969." However, Dr. Multari did
not specify any right foot disorder separate from the
veteran's service-connected right ankle disorder. A February
2000 statement from Dr. James Detelich reflects that the
veteran had been treated for right foot symptoms since the
early 1970s, and Dr. Detelich noted the veteran's in-service
right foot injury.
In March 2003, the veteran underwent a VA examination, with
an examiner who reviewed the claims file. The examiner
diagnosed right plantar fasciitis and a tiny asymptomatic
plantar heel spur. While the examiner opined that there was
a link between the veteran's right ankle disorder and his
service-connected left knee disorder, the examiner found no
evidence "of any foot problem being caused by military
service or being aggravated by his service[-]connected left
knee." The Board would point out that this is the only
evidence of record directly addressing the question of
whether a current right foot and heel disorder (as opposed to
a right ankle disorder) is directly related to service or to
a service-connected disability, and the examiner's
conclusion, which is of considerable probative value in view
of the claims file review, does not support the veteran's
claim.
The Board has reviewed the veteran's service medical records
and observes that they are negative for any cardiovascular
symptomatology. Subsequent to service, the veteran was seen
at a private facility in March 1990 with complaints of
tachycardia, but an electrocardiogram was within normal
limits. The discharge diagnoses were a vasovagal syncope,
hypokalemia, and respiratory acidosis. The veteran underwent
an electrocardiogram in April 1991 to rule out an old
inferior infarct. X-rays from the same month revealed no
heart abnormalities. A May 1994 private treatment record
indicates a regular cardiac rhythm. The report of a May 1995
VA examination contains a diagnosis of hypertension. The
veteran was admitted to a private hospital in September 1998
for an acute anterior myocardial infarction and subsequently
underwent thrombolysis and a percutaneous transluminal
coronary angioplasty. In January and February of 1999, the
veteran was hospitalized at a VA facility for coronary artery
disease. A June 1999 VA myocardial perfusion study revealed
a non-transmural scar involving the anterior wall and a
reduction in the left ventricular ejection fraction to 34
percent, with left ventricular dilation. However, none of
these records contain any sort of opinion or analysis linking
a current disorder to service.
Similarly, the veteran's service medical records are negative
for any skin problems. The veteran was first treated for
dermatitis and folliculitis at a VA medical center in March
1994. A May 1995 VA examination report contains a diagnosis
of right hand dyshydrosis. However, these records do not
contain any sort of opinion or analysis linking a current
disorder to service.
Also, the veteran was not treated for any lipomas or similar
problems during service. He was first seen for a thigh
lipoma at a VA medical center in January and February of
1994. Pathological studies were performed with lipomas from
the thigh, chest wall, and left upper arm in February 1994,
March 1994, and March 1995; none were shown to be malignant.
A May 1995 VA examination report contains a diagnosis of
status post numerous lipoma excisions. However, none of
these records contain any sort of opinion or analysis linking
a current disorder to service.
The veteran was not treated for any abnormalities of the anal
region during service. A private treatment record from
September 1994 indicates treatment for anal fissures.
However, the claims file contains no opinion or analysis
linking a current disorder to service.
During service, in May 1969, the veteran reported "stomach
aches" for the past two weeks. No diagnosis was rendered,
and his August 1969 separation examination was negative for
gastrointestinal symptoms. A September 1993 report from J.
H. Kim, M.D., reflects the veteran's complaints of diarrhea
and stomach upset. A May 1995 VA examination report contains
a diagnosis of a history of a hiatal hernia. The report of
the veteran's VA hospitalization from January and February of
1999 contains a diagnosis of a hiatal hernia. Upper
gastrointestinal x-rays from April 1999 revealed a
questionable hiatal hernia at the distal esophagus. The
veteran was seen with complaints of dyspepsia in October
2000, and a December 2000 VA esophagogastroduodenoscopy
revealed mild esophagitis, stomach erosion, and duodenitis.
However, these reports do not contain any sort of opinion or
analysis linking a current disorder to service.
To date, the RO has not afforded the veteran VA examinations
with opinions as to the etiology of his claimed
atherosclerosis, skin disorder, lipomas and tumors, anal
disorder, or stomach disorder. Such opinions are
"necessary" under 38 U.S.C.A. § 5103A(d) when: (1) there is
competent evidence that the veteran has a current disability
(or persistent or recurrent symptoms of a disability), (2)
there is evidence establishing that the veteran suffered an
event, injury or disease in service or has a disease or
symptoms of a disease within a specified presumptive period,
(3) there is an indication the current disability or symptoms
may be associated with service, and (4) there is not
sufficient medical evidence to make a decision. See 38
U.S.C.A. § 5103A(c)(4). In this case, however, there is no
evidence linking the veteran's claimed disorders to service
and no reasonable possibility that VA examinations would
result in findings favorable to the veteran. Accordingly,
the Board finds that etiology opinions are not "necessary."
See generally Wells v. Principi, 326 F.3d 1381 (Fed. Cir.
2003).
Currently, the only other evidence of record supporting the
veteran's claims is lay evidence, including his hearing
testimony and lay statements from relatives and friends.
These individuals, however, have not been shown to possess
the requisite medical training or credentials needed to
render a diagnosis or a competent opinion as to medical
causation. Accordingly, this lay evidence does not
constitute medical evidence and lacks probative value. See
Routen v. Brown, 10 Vet. App. 183, 186 (1997), aff'd, 142
F.3d 1434 (Fed. Cir. 1988); YT v. Brown, 9 Vet. App. 195, 201
(1996); Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
Overall, the preponderance of the evidence is against the
veteran's claims for service connection for a right foot and
heel disorder, atherosclerosis, a skin disorder, lipomas and
tumors, an anal disorder, and a stomach disorder, and these
claims must be denied. In reaching this determination, the
Board acknowledges that the VA is statutorily required to
resolve the benefit of the doubt in favor of the veteran when
there is an approximate balance of positive and negative
evidence regarding the merits of an outstanding issue. That
doctrine, however, is not applicable in this case because the
preponderance of the evidence is against the veteran's
claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990);
38 U.S.C.A. § 5107(b).
ORDER
The claim of entitlement to service connection for a right
foot and heel disorder is denied.
The claim of entitlement to service connection for
atherosclerosis, to include as due to exposure to ionizing
radiation, is denied.
The claim of entitlement to service connection for a skin
disorder, to include as due to exposure to ionizing
radiation, is denied.
The claim of entitlement to service connection for lipomas
and tumors, to include as due to exposure to ionizing
radiation, is denied.
The claim of entitlement to service connection for an anal
disorder, to include as due to exposure to ionizing
radiation, is denied.
The claim of entitlement to service connection for a stomach
disorder, to include as due to exposure to ionizing
radiation, is denied.
REMAND
The veteran's claim of entitlement to TDIU was received by
the RO in December 2003 and was adjudicated in a May 2004
rating decision. The current appeal ensued thereafter.
However, to date the RO has not sent the veteran a letter
notifying him of the information and evidence that is
necessary to substantiate the claim and the relative duties
of VA and the veteran in obtaining such evidence. Such
notification is required under the VCAA and Quartuccio.
Accordingly, this case is REMANDED to the RO for the
following action:
1. A letter should be sent to the
veteran explaining, in terms of
38 U.S.C.A. §§ 5103 and 5103A (West
2002), the need for additional evidence
regarding his claim. The letter must
inform the veteran about the information
and evidence that is necessary to
substantiate the claim, notify him of the
type of evidence that VA will seek to
provide, inform him of the type of
evidence that he is expected to provide,
and request that he provide any and all
relevant evidence currently in his
possession.
2. Then, after ensuring that all
necessary development has been completed,
the veteran's claim of entitlement to
TDIU should be readjudicated. If the
determination of this claim remains less
than fully favorable to the veteran, he
and his representative should be
furnished with a Supplemental Statement
of the Case (with the provisions of
38 C.F.R. §§ 3.102 and 3.159 (2003)
included) and be afforded a reasonable
period of time in which to respond before
the case is returned to the Board.
The veteran has the right to submit additional evidence and
argument on this matter. See generally Kutscherousky v.
West, 12 Vet. App. 369 (1999).
This appeal must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to
be codified at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs